All States Trust Bank Limited V. King Davidson Enterprises (Nigeria) Limited (2000)

LawGlobal-Hub Lead Judgment Report

IBIYEYE, J.C.A. 

This is an appeal against the judgment of Onajite Kuejubola, J., of the High Court of Justice Warri delivered on the 21st day of April, 1999, in suit No.W/166/95.

The plaintiff commenced action against the defendant and claimed as follows in paragraph 24 of the Amended Statement of Claim:

“1. The sum of N50,000,000.00 (fifty million Naira only) being special and general damages for the breach of the said contract.

Or in the alternative to relief above an account of the monies accruing from the said contract from the date of collection of the goods till judgment and payment over to plaintiff by the defendant of all monies due to the plaintiff thereof.

2. A declaration that the plaintiff is not indebted to the defendant under and or by virtue of the said contract/agreement.”

The defendant in strict compliance with the rules of the trial court filed and exchanged a statement of defence with counter-claim. It equally amended its pleading as the plaintiff did. The defendant joined issues with the plaintiff and in its counter-claim prayed for the sum of N8,171,907.27 (eight million, one hundred and seventy one thousand, nine hundred and seven Naira twenty-seven kobo) being the total of the plaintiff’s indebtedness to it together with interest at 20% until judgment and thereafter interest at 10% until the judgment debt is liquidated.

The case proceeded to hearing wherein the plaintiff called three witnesses and two witnesses testified on behalf of the defendant. The items of evidence on behalf of the plaintiffs were essentially that the plaintiff and the defendant entered into a contract whereby the defendant which is a commercial bank agreed to source the funds with which the plaintiff which is a business organisation would execute the supply of computer accessories and consumables to Shell Petroleum Development Company, Warri. It is also in evidence that the defendant delayed the remittance of the necessary funds to an unnamed place in the United States of America where the purchases were made. The consequence of the said delay was that, those goods arrived late in Nigeria and in particular Warri where the Shell Petroleum Development Company at whose instance they were purchased rejected them. The plaintiff particularised its losses in certain amounts and generally prayed the trial court to award it special and general damages of N50,000,000.00.

The defendant on its part denied the circumstances alleged to have caused the delay and eventual rejection of the goods in question by the beneficiary. It instead counter-claimed in the sum of N8, 171,907.27 being the plaintiff’s indebtedness to it, but it (the plaintiff) denied any indebtedness.

At the conclusion of evidence the parties’ learned counsel addressed the court. The learned trial Judge thereafter delivered a considered judgment wherein she upheld the claim and awarded the plaintiff the sum of N16,879,758.00 as damages as well as a declaration that the plaintiff was not indebted to the defendant and accordingly dismissed its counter-claim.

The defendant (now appellant) was not satisfied with that judgment and it appealed to this court on five grounds. Briefs of argument were filed and exchanged in compliance with the rules of this court. The appellant identified the following five issues from the five grounds of appeal:-

“(i) Whether the learned trial Judge was right to have held that time was of the essence in the contract between the appellant and the respondent from facts extraneous to Exhibit E which is the contract between the appellant and the respondent.

(ii) Whether from the totality of evidence led (both documentary and oral) at the trial the appellant was in breach of the contract she entered into with the respondent.

(iii) Whether failure of a party to call a particular witness(es) makes his/her case liable to dismissal.

(iv) Whether from the totality of the evidence led (oral or documentary) at the trial the respondent can be said to have proved her case on a balance of probabilities as to be entitled to the judgment given in her favour by the learned trial Judge.

(v) Whether from the state of the pleadings, the reliefs sought and evidence led at the trial, the High Court of Justice sitting at Warri in Delta State had jurisdiction to entertain the suit.

The respondent on its part, filed its brief of argument and embodied a notice of preliminary objection in it. The notice of preliminary objection reads:-

“This notice of preliminary objection relates to the validity or competence of Grounds 1-4 of the appellant’s grounds of appeal from which issues 1-4 of the appellant’s brief are purported to have been distilled in the same sequence.”

It is settled that if preliminary objection is raised on appeal such objection must be resolved before the hearing of the substantive appeal. See ONYEMEH & ORS. v. EGBUCHULAM ORS. (1996) 4 SCNJ 235; (1996) 5 NWLR (Pt.448) 255. I shall be guided by this principle and consider the preliminary objection and give a ruling on it before considering the substantive appeal.

It is apparent from the notice of preliminary objection that the respondent has taken exception to grounds 1 to 4 of the grounds of appeal. It will make for better appreciation of the respondent’s complaints if the seemingly vexed grounds 1 to 4 of the grounds of appeal are reproduced. They read:

“1. The learned trial Judge erred in law and misdirected herself on the facts when she held that time was of the essence in the contract between the defendant/appellant and the plaintiff/respondent when Exhibit “E” which both parties concede as the basis of their contractual relationship did not make any provisions for any limits.

PARTICULARS OF ERROR:

i) It is settled law that where parties to a contract agree and the agreement is reduced into writing the rights and obligations under the contract is solely governed by the written document. The learned trial Judge erred in law to have found that time was of the essence of the contract based on documents extraneous to Exhibit ‘E’.

2. The learned trial Judge erred in law and misdirected herself on the facts when she held that the defendant/appellant breached the contract she had with the plaintiff/respondent when the plaintiff did not adduce any credible evidence nor any evidence at all to that effect.

PARTICULARS OF ERROR:

i) It is the law that he who asserts must prove. The conclusion that the defendant failed to lead any evidence that the late arrival of the goods was its fault and therefore liable to the breach was wrong.

3. That the learned trial Judge erred in law when she held that the defendant/appellant failed to prove its counter-claim when it failed to call certain people as witnesses.

PARTICULARS OF ERROR:

i) It is trite law that a plaintiff in order to prove its case is not bound to call all the witnesses available or at his (sic) disposal. The learned trial (sic) was therefore wrong in holding that the failure of the defendant/appellant to call one Kezie Emuchay and Tony Elumelu inspite of other credible evidence adduced in proof of the counter-claim was fatal to the counter-claim.

4. The learned trial Judge erred in law when she held that the plaintiff had proved her case on a balance of probabilities and was therefore entitled to judgment.

PARTICULARS OF ERROR:

i) The balance of probalities in respect of each case is only to be ascertained by weighing or evaluating on the imaginary scale the credible and cogent evidence adduces (sic) by the parties at the trial. As was rightly observed by the learned trial Judge, the plaintiff must succeed on the strength of her own case.

ii) The evidence of the plaintiff’s witness in this case was self conflicting, self contradictory and not succinctly (sic) credible to merit the ascription by the learned trial Judge of any probative value thereto as to enable the same to be placed on the imaginary scale against the evidence of the defendant’s witness.

(iii) The plaintiff’s case was hinged on Exhibit “E” which is the financing agreement between the plaintiff and the defendant which was shown not to have any time limits so that the defendant was incapable of being said to have delayed the supply of the items to Shell Petroleum Development Company of Nigeria Limited.

(iv) The evidence of D.W.3 was contrary to Exhibit “D” and “Exhibit E “D1” which is the price list tendered by him so that there was no basis for the learned trial Judge to have hinged her judgment on both P.W.3’s evidence and Exhibit.

(v) In the premises, the finding that plaintiff has proved her case on the balance of probabilities was perverse. (Underlining for emphasis)

At the hearing of this appeal, D. Akpedeye Esq., and Chief E.L. Akpofure, S.A.N., who respectively appeared for the appellant and respondent adopted their appellant’s brief and reply to respondent’s briefs and respondent’s brief.

D. Akpedeye Esq., the learned counsel for the appellant contended that the respondent’s preliminary objection as couched is irregular as it is not in compliance with Order 3 rule 15( 1) of the Court of Appeal Rules, 1981 as amended and updated in the Laws of the Federation of Nigeria, 1990 (hereinafter referred to as 1981 Rules). He argued that the notice required by those rules is by way of motion on notice and that merely indicating the notice in the brief will not suffice and he relied on the case of OKOLO & ANOR v. UNION BANK OF NIGERIA LTD. (1998) 2 NWLR (Pt.539) 618 at 644. He went on to submit that the preliminary objection raised in the brief is not stated because it does not comply with Order 3 rule 15(1) of the Rules of 1981.

In reply, Chief E. L. Akpofure, S.A.N., said that the circumstances of the case of OKOLO & ANOR v. UNION BANK OF NIGERIA LTD., which involved the registrar of the court instead of the Judge extending time to appeal are quite different from this case. I have read that case and I found that the registrar did not only exercise power of extension of time which is ultra vires his authority, there is also the more far reaching lapse of not filing the requisite notice of preliminary objection. The  procedure for raising a preliminary objection in a case on appeal is stipulated in Order 3 rule 15(1) of 1981 Rules which states:

“15(1) A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with seven copies thereof with the Registrar within the same time.”

It is obvious from the respondent’s preliminary objection which I have already reproduced in this judgment that the requisite notice which was embodied in the respondent’s brief filed on the 25th of January, 2000 was given. The appellant also had more than three clear days’ notice when this appeal was heard on the 6th of May, 2000. The appellant cannot therefore be heard to say that it was taken by surprise. The concept of three clear days notice reflected in the enabling provision (supra) does not admit of motion on notice unless such objection is taken up separately from the main appeal and ruled upon. See SAVANNAH BANK (Nig.) PLC v. PRIME MANAGEMENT SYSTEMS LTD (1999) 10 NWLR (Pt.621) 160 at 164; AFRICAN CONTINENTAL BANK LTD. v. APUGO (1995) 6 NWLR (Pt.399) 65; OBI v. OWOLABI (1990) 5 NWLR (Pt.153) 702 at 717; and NSIRIM v. NSIRIM (1990) 3 NWLR (Pt.138) 285 at 297.

It is trite that the inclusion of the preliminary objection provided the necessary foundation of notice of three days being given to the appellant is strictly complied with. See MAIGORO v. GARBA (1999) 10 NWLR (Pt.624) 555 at 570,571 and 572. If, however, notice of preliminary objection is embodied in the respondent’s brief without the requisite notice, such preliminary objection is liable to be ignored or refused. See: OKOLO & ANOR v. UNION BANK OF NIGERIA LTD. (supra) 644; MAIGORO v. GARBA (supra) 570; and AJIDE v. KELANI (1985) 3 NWLR (Pt.12) 240.
In the instant case, the notice of preliminary objection fully complied with the requisite provision and it has been properly encompassed in the respondent’s brief. I accordingly uphold it.

As regards the exception taken to grounds 1 to 4 of the grounds of appeal, the learned Senior Advocate started with grounds 1 and 2. He observed that these two grounds (already reproduced) are grounds complaining of error in law and misdirection on the facts. He submitted that such grounds of appeal are incompetent and he relied on the cases of NWADIKE & 2 ORS v. IBEKWE & 2 ORS. (1987) 4 NWLR (Pt. 67) 718 at 744; OBI v. OWOLABI (supra) at pages 716 and 717; and IDEH v. UNIVERSITY OF ILORIN (1994) 3 NWLR (Pt.330) 81 at 87. He further submitted that the aforementioned grounds as postulated are grounds of mixed law and facts for which no leave of this court was sought and obtained as required by section 221(1) of the Constitution of the Federal Republic of Nigeria (hereinafter referred to as 1979 Constitution). He urged the court to strike out these two grounds of appeal.

In response, the learned counsel for the appellant submitted that a ground of appeal which alleges an error in law and a misdirection on the facts is not for that reason alone rendered incompetent, and he relied on the case of OGUNTAYO & 2 ORS.  v. ADEBUTU & 2 ORS. (1997) 12 NWLR (Pt.531) 83 at 91 where he said the respondents in that case said that grounds 2, 3,5, 8 and 9 of the grounds of appeal couched as “error in law and in the facts” or “misdirection in law and on facts” are incompetent and should be struck out and they relied on the cases of NWADIKE & 2 ORS v. IBEKWE & 2 ORS. (supra) at page 744; KALU v. MBUKO (1988) 3 NWLR (Pt. 80) 86 at 96; RIVERS STATE COLLEGE OF EDUCATION v. OMUBO (1992) 8 NWLR (Pt.260) 456 at 465. This court in that case (i.e. The Oguntade Case) held that in view of the decision in THOR LTD. v. FIRST CITY MERCHANT BANK LTD. (1997) 1 NWLR (Pt.479) 35 that NWADIKE  v. IBEKWE (supra) did not lay down the principle that a ground of appeal so couched is incompetent.

A hard look at the manner of couching grounds 1 and 2 in this case and the case of OGUNTAYO & 2 ORS.  v. ADEBUTU & 2 ORS. ( supra) shows appreciable difference. Thus in this case each of the two grounds is couched essentially as:-

“…trial Judge erred in law and misdirected herself on the facts”

whereas in the other case relied upon the five grounds were couched seriatim as:

“error in law and on the facts”
OR:
“misdirection in law and on the facts”.

It will be observed that the former is conjunctive in its application while the latter is disjunctive. On the latter, it is only one of the two alternatives that can be recoursed to. The addition of the words “and on the facts” in either of the two alternatives cannot be regarded as invalid so long as its purport is clear and not misleading. Its purport may be to lay emphasis and that does not derogate from the concept of either “error in law” or “misdirection in law” when either of them is used at a time. It is settled law that a ground of appeal cannot be an error in law and a misdirection on the facts in the same ground of appeal. See NWADIKE & 2 ORS. v. IBEKWE & 2 (supra) 744. These are two separate grounds of appeal. Since each of grounds 1 and 2 of the appellant’s grounds of appeal as couched postulates two grounds of appeal, it is incompetent. In effect grounds 1 and 2 of the appellant’s grounds of appeal are invalid and they are accordingly struck out.

On Ground 3 of the Grounds of appeal, the learned Senior Advocate contended that this ground is not borne out of the findings of the learned trial Judge and that it is trite law that every ground of appeal must be related to the judgment appealed against and that any ground not so related should be struck out. He referred to page 121 lines 10 to 25 of the printed record which contains the learned Judge’s finding in respect of the counter-claim and contended that the learned trial Judge’s finding is not related to the aforementioned ground. But that the issue relating to witnesses came to light at page 117 lines 6 to 26 of the same record. He argued that at the stage when the learned trial Judge opined as reflected at page 117 lines 7 to 26, she was considering the success or otherwise of the claim of the plaintiff/respondent and it had nothing to do with the counter-claim of the defendant/appellant. It is instead at page 121 lines 10 to 25 of the record that the learned trial Judge considered the counter-claim of the defendant/appellant. He urged the court to strike out ground 3 of the grounds of appeal and relied on the cases of ODUBEKO v. FOWLER (1993) 7 NWLR (Pt.308) 637 at 653; OBATOYINBO v. OSHATOBA (1996) 5 NWLR (Pt.450) 531 at 549; and BAKULE v. TANEREWA NIG. LTD. (1995) 2 NWLR (Pt.380) 728 at 739 – 740.

The appellant offered no reply on this issue. This apparent silence by the appellant on the attack on ground 3 of the grounds of appeal, although a concession, will not shut the court out of the respondent’s contention.

The stance of the respondent will be better appreciated if pages 117 lines 7 to 26 and 121 lines 10 to 25 of the printed record on the parts of the findings of the learned trial Judge are reproduced. They read:

“Page 117 lines 7 to 26.

The evidence led by D.W. 1 and D.W. 2 which fell short of challenging that fact established by the plaintiff i.e. P.W.1 and P.W.2 left the court to wonder if the defendant was truly prepared to defend this case. The answer, however, came from D.W.2 who said that all he testified here (sic) in court was what he gathered from documents handed over to him in his possession; and that he was employed in defendant bank (sic) in the year 1996 while the transaction in question took place in 1993. The court is left to wonder why the persons referred to, Tony Elumelu and Chiekezie Emuchay who dealt with the plaintiff company as representatives of defendant bank were not called upon. There is nothing from the statement of defence to suggest or provide an answer to my question which obviously is in dire need of an answer. The mere denial of para. 25 (a) of the plaintiff’s claim by para. 20 of the statement of defence, obviously tilts the scale in favour of the plaintiff, i.e. that Exhibit B could be correct and acted upon i.e. that the sum of N4,425,721.68k was the balance in plaintiff’s account as at 31/8/93”

Page 121 lines 10 to 25 reads:

“With regards to (sic) the counter claim, D.W.1 and D.W. 2 did not led (sic) evidence establishing how they arrived at the sum claimed, i.e. N8,171,907.00. D.W. 1 said he did not know how much was given to the plaintiff. The defendant via para. 7 of the counter-claim avered (sic) that he will rely on plaintiff’s statement of account which were (sic) never tendered by defendant in the course of trial.
Mere reference to facts stated in the counter-claim fails (sic) short of the required standard of proof in civil cases. Learned counsel’s address cannot take the place of evidence. The burden is on the defendant to prove the counter-claim, as the onus is not on the plaintiff who denied same, via the defence to the counter-claim.

The defendant has failed to discharge the onus placed on him, and accordingly therefore, the counter claim does not succeed. It fails and is hereby dismissed.”

It is apparent from the above extracts from printed record that the learned trial Judge at page 117 lines 7 to 26 was in the process of considering the absence of two named persons who dealt with the plaintiff/respondent on behalf of the defendant/appellant in her attempt to ascertain the liability or otherwise of the defendant/appellant. This consideration by the learned trial Judge neither relates to the counter claim of the defendant/appellant nor a finding on it (the counterclaim). Whereas extract at page 121 (supra) on which ground 3 of the grounds of appeal is based and which is undoubtedly a finding is salient on the issue of failing

“to prove its counter-claim when it failed to call certain persons as witnesses.”

I entirely agree with the submission of the learned Senior Advocate for the respondent that ground 3 of the grounds of appeal is not derived from any finding made by the learned trial Judge. It is settled law that for a ground of appeal to be competent it must arise from the judgment appealed against. See OBATOYINBO v. OSHATOBA (supra) 549; and FAKUNLE v. TANIRINWA NIG. LTD. (supra) 739 and 740.In the instant case, it is not in doubt that ground 3 of the grounds of appeal is not based on the judgment appealed against. It is therefore struck out for incompetence.

The learned Senior Advocate referred to ground 4 of the grounds of appeal which is couched as an error in law and contended that it is instead a ground of mixed law and fact for which leave of this court is required before it becomes competent. He submitted that such leave was not sought and got and that that ground becomes incompetent. He further submitted that a ground of appeal does not become a ground of law because it has been so styled. It is the characterization of a ground of appeal that enures to it the appellation of a ground of law and facts or a ground of mixed law and facts or a ground of facts. He argued that a microscopic look into the particulars of the ground will bring to the fore its true character. Thus he submitted that particulars 1 to 4 of ground 4 of the grounds of appeal (supra) relate to evidence led, weight to be attached to it as well as credibility while particular 5 which is on balance of probabilities should have been made a ground of appeal. He urged the court to strike out this ground for being incompetent.

In response, the learned counsel for the appellant urged the court to hold that ground 4 of the grounds of appeal is a ground of law. He submitted that by virtue of the provisions of Section 220 (1)(a) of the 1979 Constitution leave is not required to file a ground of appeal emanating from a final decision of a court sitting at first instance; and he relied on the case of OLAOSEBIKAN v. WILLIAMS & ANOR (1996) 5 NWLR (Pt. 449) 437 at 442 and 449.

It appears from the response of the learned counsel for the appellant that he paid little attention to the microscopic test of the particulars of a ground of appeal in order to determine its characterisation of being a ground of law, ground of mixed law and facts, or ground of facts as required in law. See OJEMEN v. MOMODU II (1983) 3 SC 173; (1983) 1 SCNLR 188; and U.B.A. v. G.M.B.H.(1989) 3 NWLR (Pt.110) 374 and 410.

I have instead scrutinized the attendant particulars and found that they relate to assessment of evidence otherwise referred to balancing of evidence. When such evidence is placed on an imaginary scale and it tilts more in favour of one of the litigants, the case is adjudged for that litigant. This head of ground can conveniently be brought under the general or omnibus ground. It is settled that the general ground of appeal invariably complains about the incongruities in the learned trial Judge’s assessment of facts before him. It is my view that the attacks in ground 4 are exclusively on the facts evidenced upon in the trial court. It follows therefore, that ground 4 as couched is a misnomer. It is not a ground of law but a ground of facts. Se: OGBECHIE v. ONOCHIE (1986) 2 NWLR (Pt.23) 484; UNITED BANK FOR AFRICA LTD v. STAHLBAU GMBH & CO. KG. (1989) 3 NWLR (Pt.110) 374 at 410;NWADIKE & ORS. v. IBEKWE & ORS (1987) 12 SC.14 at 54; (1987) 4 NWLR (Pt.67) 718; AJAYI v. OMOROGBE (1993) 6 NWLR (Pt.301) 512; and MAIGORO v. GARBA (supra) 573.

In view of the unveiling of the true character of ground 4 as a ground of facts, is it a competent ground of appeal in this court? The learned counsel for the appellant appeared to have stated the true position at law that leave is not required to file a ground of appeal emanating from the decision of a court of first instance but this is when that ground of appeal is on question of law alone. See section 220(1)(a) and (b) of the 1989 Constitution. (Underlining for emphasis). But the position at law when the ground of appeal deals with question of facts as in this case is dealt with in section 221 (1) of the 1979 Constitution. It reads:

“221-(1) Subject to the provisions of section 220 of this Constitution, an appeal shall lie from a decisions of the High Court to the Federal Court of Appeal (sic) with leave of that High Court or Federal Court of Appeal (sic)” (Underlining mine for emphasis)

Section 220 referred to above, spells out the circumstances under which appeal shall lie as of right to this court. Section 220(1) (a) of that section is of particular moment and it reads:-

“220(1). An appeal shall lie from the decisions of a High Court to the Federal Court of Appeal (sic) as of right in the following cases:

(a) …
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings

(c) to (g) …………”
(Underlining mine for emphasis)

In view of the fact that it is evident that ground 4 of the grounds of appeal involves question of facts and in further view of the fact that the appellant did not seek the leave of the court below or this court before filing it, it (the appellant) is in gross violation of section 221(1) of the 1979 Constitution. Ground 4 of the grounds of appeal is accordingly incompetent.

The resultant effect of the respondents preliminary objection is that grounds 1, 2, 3 and 4 out of the five grounds of appeal in this case are incompetent and they are accordingly struck out.

Since issues for determination in an appeal must relate to competent grounds of appeal and grounds 1, 2, 3 and 4 of the grounds of appeal have been declared incompetent and struck out, Issues Nos. 1, 2, 3 and 4 which draw probative value from those grounds are equally doomed for striking out. Issues Nos. 1, 2, 3 and 4 formulated by the appellant are accordingly struck out.

This appeal is, however, saved by its ground Five. The issue distilled by the appellant from this ground of appeal reads:

“Whether from the state of the pleadings, the reliefs sought and the evidence led at the trial, the High Court Judge sitting in Warri in Delta State had jurisdiction to entertain the suit.”

The respondent formulated a similar issue for determination. In order to sustain the issue in favour of the appellant, its learned counsel referred to Order 10 rule 3 of the High Court (Civil Procedure) Rules, 1988 of the defunct Bendel State applicable in Delta State (hereinafter referred to the 1988 Rules). He submitted this from the totality of the evidence led at the trial and averments in the pleadings the contract between the appellant and the respondent was to have been performed in Port Harcourt because:

(a) Exhibit E which was the contract in point was entered into in Port Harcourt.

(b) Paragraph 8(ii) of the respondent’s amended statement of claim made it abundantly clear that the only security on the loan granted to the respondent which was by way of domiciliation of payment from SPDC into the appellant’s bank was to be made into the Port Harcourt branch of the said appellant’s Bank.

(c) The monies which the appellant remitted to the respondent pursuant to Exhibit E was transmitted to the U.S.A. via a fax message Exhibit G sent from the appellant’s Port Harcourt Office. He urged the court to resolve the issue in the negative.

In reply, the learned Senior Advocate for the respondent also hinged his argument on Order 10 rule 3 (supra). He submitted that all suits upon breach of any contract may be commenced and determined in the judicial division in which that contract ought to have been performed or in which the defendant resides or carries on business. He further submitted that the aids to ascertain whether the trial court has jurisdiction or not are the operative statement of claim and statement of defence. He referred to paragraphs 2 and 3 of the amended statement of claim and paragraph 1 of the amended statement of defence and submitted that paragraphs 1 and 2 of the amended statement of claim was admitted by the appellant in its paragraph 1 of its amended statement of defence. He also referred to the items of evidence of the P.W.1 to the effect that the respondent was a supplier of computer consumables to Shell Petroleum Development Company in Warri and that in January, 1993, it got a contract to supply those goods to Shell Petroleum Development Company Warri. There is also evidence on behalf of the appellant that the computer consumables were to be supplied to Shell Petroleum Development Company in Warri, Delta State. What all these mean, the learned Senior Advocate submitted, is that the contract ought to have been performed in Warri, Delta State.

It is common ground that pleadings and supporting evidence generally determine the court that is seised of jurisdiction in suits involving breach of contracts and specific performance. In the instant case, paragraphs 1, 2 and 3 of the amended state of claim and paragraph 1 of the amended statement of defence need some consideration and should therefore be reproduced. Paragraphs 1, 2 and 3 of the amended statement of claim read:

“1. The plaintiff is a limited liability company incorporated in Nigeria under the Companies and Allied Matters Act. Plaintiff carries on business in Warri and Port Harcourt from plaintiffs (sic) office at No.2 Aguma Street, Port Harcourt.

2. The defendant is a commercial bank incorporated under the relevant law of Nigeria and carries on business at Warri and Port Harcourt inter alia. The defendant at all times material to this case and even now has offices and carries on business at Deco Road Warri within the jurisdiction of this Honourable court.

3. Sometimes in January, 1993, the plaintiff and the defendant entered into a joint business venture contract for the supply of goods i.e. computer consumables to the Shell Petroleum Development Company Limited Warri within the jurisdiction of this Honourable court…”

Paragraph 1 of the amended statement of defence reads:

“1. The defendant admits paragraphs 1 and 2 of the statement of claim (Underlining mine for emphasis)

The relevant supporting items of evidence have already been recapitulated.

It is pertinent at this juncture to reproduce Order 10 rule 3 of 1988 Rules. It reads:

“3. All suits for specific performance or upon the breach of any contract, shall be commenced and determined in the judicial division in which such contract ought to have been performed or in which the defendant resides or carries on business.” (Underlining mine for emphasis)

The purport of this provision is that jurisdiction is conferred on the court situate in any of the following three locations:

(1) where the contract ought to have been performed;

(2) where defendant resides;

(3) where the defendant carries on business.

All that is needed under the provision is that anyone of the three locations will confer jurisdiction on the High Court division located there.

It is not in doubt from the foregoing that the pleading and items of evidence are replete with the fact that where the contract between the respondent and Shell Petroleum Development Company Limited ought to have been performed was in Warri, Delta State. In view of this, the court that is seised of jurisdiction in the breach of contract between the appellant and the respondent is the judicial division of Delta State High Court in Warri. That indeed was the court that was presided over by the learned trial Judge in this case. There is no merit in the appellant’s contention. The issue is accordingly resolved in the affirmative.

In the final analysis, there is no merit in the only surviving ground of appeal and it is dismissed. The judgment of the trial court is affirmed. I award costs of N5,000.00 to the respondent.

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Other Citations: (2000)LCN/0857(CA)